[2012] KEHC 415 (KLR)
The court found that the applicant's statement before sentencing cast doubt on the unequivocal nature of the plea of guilty entered in the subordinate court. The learned magistrate should have sought clarification before convicting the applicant. Given these circumstances, the court held that the appeal had...
Source-derived case information.
- Citation
- [2012] KEHC 415 (KLR)
- Parties
- Appellant: Musa Kitusa David; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 74 of 2012
- Procedural Posture
- Criminal Appeal / Application for Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- GMA Dulu
- Legal Topics
- Bail Pending Appeal, Plea of Guilty, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Musa Kitusa David
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether the plea of guilty entered in the subordinate court was unequivocal.
- 3 Whether the appeal has overwhelming chances of success.
Ratio Decidendi
The court found that the applicant's statement before sentencing cast doubt on the unequivocal nature of the plea of guilty entered in the subordinate court. The learned magistrate should have sought clarification before convicting the applicant. Given these circumstances, the court held that the appeal had overwhelming chances of success, satisfying the threshold for granting bail pending appeal. The applicant was therefore entitled to be released on bail pending the determination of the appeal.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The applicant is released on signing a bond of Kshs.200,000 with one surety of similar amount.
- The applicant shall attend all mentions and the hearing of the appeal.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Machakos
Criminal Appeal 74 of 2012 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Times New Roman","serif";} </style> <![endif]
MUSA KITUSA DAVID ..….…………………… APPELLANT/APPLICANT
VERSUS
REPUBLIC …………………………………...........………. RESPONDENT
R U L I N G
Before me is an application by way of Notice of Motion dated 27th June 2012. It is an application filed under Section 357 of the Criminal Procedure Code (Cap 75 of the Laws of Kenya). It is an application for bail pending hearing and determination of appeal.
The application was filed with an affidavit sworn on 27th June 2012 by Andrew Makundi Advocate for the applicant. It was deponed in the said affidavit, inter alia, that the appeal had overwhelming chances of success and it was only fair and just that the applicant be released on bail pending appeal. The application was also filed with a memorandum of appeal which I have perused.
The counsel for the applicant and the State Counsel filed written submissions.
An applicant for bail pending appeal, has to show that the appeal has overwhelming chances of success – SeeDominic Karanja –vs- Republic (1986) KLR 612. This is a case where the applicant was convicted by the subordinate court on his own plea of guilty. He was sentenced to seven (7) years imprisonment. Before being sentenced, he was recorded as having stated that the complainant was with his wife at night and he “came out with a panga and I cut him before he could cut me”. However, the learned magistrate convicted him as having pleaded guilty to the charge.
The burden is always on the prosecution to prove an accused person guilty beyond reasonable doubt. Where there is a plea of guilty, such plea has to be unequivocal. It has to be clear that the accused actually pleaded guilty to the charge beyond any reasonable doubt. In my view, considering the statement made by the applicant before he was sentenced, the learned magistrate should have entertained doubts on the unequivocal nature of the plea, and asked for clarification before proceeding further. He did not. In my view, the appeal has overwhelming chances of success. Consequently, I find no reason to detain the applicant in prison custody further. I will release him on bail pending appeal.
As a result, I allow the application. I order that the applicant be released on signing a bond of Kshs.200,000/= with one surety of similar amount. He will attend all mentions of the appeal as well as the hearing of the same. The first mention will be before the Deputy Registrar on 20/12/2012.
Dated and delivered at Machakos this 10thday of December2012.
George Dulu
Judge
In presence of:-
Mr Makundi for Applicant present
Applicant present
N/A for State
Mutinda – Court clerk